Substantive and Procedural Unconscionability in Prenuptial Agreements Explained

The legal implications of unconscionability in New Jersey prenuptial agreements are significant, so it is important to understand how case law has further clarified the meaning of the term.

For most people, their wedding day is one of the happiest days of their lives. Yet for some, it can be a day where there is some tension in the air. If you have been asked to sign a prenuptial agreement, you may have some mixed feelings or, perhaps, there is something about the circumstances that just isn’t sitting right with you. Maybe you feel like your partner or their family have pressured you into signing the agreement or that the terms of the agreement are not in your interest.

If you’re having cold feet about signing a prenuptial agreement or you regret having signed one, you are certainly not alone. Sometimes, there’s not much that can be done to reverse your regret, but if the terms of the agreement were unconscionable, then you may have legal options for recourse.

The Overarching Term “Unconscionable” in NJ Law

The term unconscionability refers to an agreement that is so one-sided or so unfair that it shocks the conscience. Under New Jersey law, a prenuptial agreement can be deemed to be unconscionable if it is grossly unfair to one party. This unfairness may exist in the terms of the agreement (substantive) or the circumstances under which it was executed (procedural). The legal concept of unconscionability exists to protect people from being legally bound to agreements that were entered into under duress or without understanding or are excessively harsh in their terms. Unconscionability falls under two different categories: substantive and procedural.

The Meaning of Substantive Unconscionability for Prenups

Substantive unconscionability relates to the terms of the agreement and whether they are overly harsh, grossly unfair, or one-sided to one spouse. For example, if a prenuptial agreement requires one spouse to waive all of their rights to any martial property and does so without any reasonable justification, then this term may be deemed unconscionable. For example, if one spouse entered the relationship with substantial assets and the other had very little, it may be deemed unconscionable if the later spouse waives any claim to marital assets acquired during the marriage. If the waiver leaves the already financially weaker spouse with no resources at all, then the court may refuse to enforce the agreement on the grounds that it is substantively unconscionable.

Recognizing Procedural Unconscionability in New Jersey Courts

Procedural unconscionability, on the other hand, related to how and when a prenuptial agreement was executed or the process by which it was created and signed. This addresses situations where one spouse is pressured or coerced into signing the agreement, did not have independent legal counsel, or was not given adequate time to review the agreement. A classic example of this would be a bride presented with a prenuptial agreement on the eve of her wedding, after the wedding had been paid for by her parents and friends and family had flown in for the special day. Procedural unconscionability can also occur when one spouse is not given access to their own, independent legal counsel or they did not understand what they were agreeing to due to complex legal jargon in the agreement.

What to Watch For When Looking for Signs of Unconscionability in Your Prenuptial Agreement

Whether you have recently been presented with a prenuptial agreement or you are reflecting back on one you already signed, it is important to be aware of some red flags that could indicate the terms of your agreement or the circumstances under which it was drafted and executed might be unconscionable.

One red flag is finding out about assets that were not disclosed to you. Both parties to a prenuptial agreement must provide a full financial disclosure for the contract to be conscionable. Failing to disclose income, liabilities, and assets in a way that hides or misrepresents one’s financial situation could cause the prenuptial to be deemed unconscionable.

If one spouse is represented by an attorney and the other is not or if both parties are represented by the same attorney, then this raises a red flag. It is important that both parties have the opportunity to seek independent legal advice or else one party may enter into the agreement without a full understanding of what they are signing.

The timing of a prenuptial agreement can also be a red flag. If one party presents a prenuptial agreement at the last minute, the other to-be spouse may feel a lot of pressure to sign the agreement or lack adequate time to consider the agreement prior to the wedding. If the other party is under a lot of time pressure, then their agreement may not be truly voluntary.

While a significant disparity in the financial situations of the two parties is not dispositive of unconscionability, it can be a red flag. It is important to look closely at the agreement to determine if it is so one-sided that it is unconscionable. For example, protecting assets held by one party prior to the marriage could be a reasonable term but, depending on the situation, if one spouse agrees to forgo all martial property and alimony, along with being in the weaker financial position, then this may be unconscionable.

Steps to Take Before Signing a Prenuptial Agreement and What to do if You Suspect Unconscionability in Yours at the Jersey Shore

Before signing a prenuptial agreement, it is crucial that you have the agreement reviewed by your own, independent attorney. You should not share an attorney with your to-be spouse when drafting or reviewing a prenuptial agreement because the two of you inherently have different interests in such a contract. Your lawyer should review the agreement to ensure that the terms are fair to you and it is not a one-sided agreement. They can also help you navigate the stressful situation of being presented with a prenuptial agreement at the last minute.

While prenuptial agreements can be an important tool in protecting your assets and future, it is also critical that the agreement considers your best interests and that you enter into the agreement voluntarily and understand the terms. At Bronzino Law Firm, our team of family lawyers assists clients with negotiating, creating, and filing prenups in Eatontown, Belmar, Manasquan, Monmouth Beach, Ocean Township, Lakewood, Neptune, Wall, and throughout Ocean and Monmouth County. Our attorneys can also assist you with determining whether your prenuptial agreement is, indeed, unconscionable and what can be done to rectify these wrongs. Contact us today at  (732) 812-3102  for a free consultation with one of our knowledgeable family law attorneys.